Allied Power Pty Ltd

[2020] FWCA 4429

[2020] FWCA 4429

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Allied Power Pty Ltd
(AG2020/2110)

ALLIED POWER ENTERPRISE AGREEMENT 2020

Electrical contracting industry
COMMISSIONER LEE	MELBOURNE, 21 AUGUST 2020

Application for approval of the Allied Power Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Allied Power Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Allied Power Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

•  10.3 - Hours of Work; and

•  20.3 – Public Holidays.

However, noting clause 5.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] As per s.180(3)(b) of the Act, the Employer must take all reasonable steps to notify the relevant employees of the voting method that will be used. The notice of vote and ballot paper provided to employees both indicated that the voting method would be via email, yet it is apparent that not all employees were accessible by email. However, the employer submitted that “all of the employees covered by the Agreement were in the Company office that day, and were provided with a ballot paper to complete their vote”. While the notice of vote and ballot paper do not reflect this, the employer made submissions that “all employees were informed at the toolbox meeting that a secret ballot would be available as an alternative method to vote”.

[6] Having considered all of the circumstance surrounding the voting process, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(2)(a) and that the employees were not likely to have been disadvantaged by the error. Accordingly, I am satisfied that the Agreement was genuinely agreed within the meaning of s.188(2) of the Act.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 August 2020. The nominal expiry date of the Agreement is 20 August 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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Annexure A

IN THE FAIR WORK COMMISSION	Fair Work Act 2009 (Cth) (“FW Act”)
Matter number:	AG2020/2110
Employer:	Allied Power Pty Ltd (the Employer)
Application:	Section 185 – Application for approval of a single enterprise agreement, namely the Allied Power Enterprise Agreement 2020 (the Agreement)
Authorised representative:	Tania Taylor HSEQ Manager

Undertaking- Section 190

For and on behalf of the Employer, I, Tania Taylor:

1. declare that I have:

a. authority to give this undertaking on behalf of the Employer,

b. sought the views of the bargaining representative for this undertaking pursuant to s190(4) of the FW Act,

2. understand that each undertaking is to be taken to be a term of the Agreement,
3. give the following undertakings with respect to the Agreement:

a. With respect to clause 7. in the Agreement – Classifications and Wage Rates– subclauses 7.5 and 7.6 Apprentices will be taken to read as follows (added wording is in italics):
”7.5 The ordinary rate of pay for an Apprentice, including an Adult Apprentice, shall be not less than the EW 5 ordinary hourly rate per week in the Agreement as set out under the relevant apprenticship term percentage of the Electrical, Electronic and Communications Contracting Award 2010.
7.6 The ordinary rate of pay for an Adult Apprentice (over 21 years of age) will be paid in accordance with Clause 16.4(b) of the Electrical, Electronic and Communications Contracting Award 2010. The rate will be at least the required percentage in accordance with the Award, of the ordinary hourly rate of the EW 5 classification in the Agreement.“

b. With respect to clause 17. in the Agreement – Annual Leave – subclause 17.2(b) will be taken to read as follows (added wording is in italics):

“17.2(b) 5 weeks paid annual leave if the Employee is a continuous shift worker. For the purposes of this Agreement and of the National Employment Standards a “continuous shift worker shall include an employee engaged to work in a system of consecutive shifts throughout the 24 hours of each of at least five (5) consecutive days without interruption (except during breakdown or meal breaks or due to unavoidable causes beyond the control of the Employer) and who is regularly rostered to work those shifts.”

Date signed:

18 August 2020

For and on behalf of the Employer by:

[In accordance with s.190(5) of the FW Act]

Tania Taylor

Signature:

Witness name:

Raewynne Taylor

Witness signature: